FFH17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 508

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FFH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 508

File number(s):

MLG 2592 of 2017

Judgment of:

JUDGE MANSINI

Date of judgment:

16 June 2023

Catchwords:

MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – whether the Authority failed to consider the applicant’s claim to face a real chance of serious harm or a real risk of significant harm – where claim not explicitly or implicitly put before the Authority – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth) ss.36, 46A, 65, 473DD, 474, 476

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443

Craig v South Australia (1995) 184 CLR 163

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Division:

Division 2 General Federal Law

Number of paragraphs:

55

Date of last submission/s:

5 May 2023

Date of hearing:

10 May 2023 

Place:

Melbourne

Counsel for the Applicant:

Mr M Kenneally

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr A Yuile

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

MLG 2592 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FFH17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE MANSINI
DATE OF ORDER:	16 June 2023

THE COURT ORDERS THAT:

1.The application (as amended on 11 April 2023) be dismissed.

2.The Applicant pay the costs of the First Respondent fixed in the sum of $7,500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Mansini

IN SUMMARY

1. This is an application for review of a decision made by the Immigration Assessment Authority (the Authority) pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Authority affirmed a decision of a delegate of the First Respondent Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa.

2. For the reasons that follow, the application should be dismissed.

   CONTEXT

3. The Applicant is a citizen of Sri Lanka and of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 8 September 2012.

4. On 30 November 2015, the Applicant was invited to apply for a Safe Haven Enterprise (subclass 790) visa (SHE Visa) after the Minister lifted the statutory bar under s.46A(2) of the Act.

5. On 4 May 2016, the Applicant applied for a SHE Visa. The application form specified that the Applicant had received assistance from Refugee Legal in completing the form. The application materials included a statutory declaration of the Applicant signed 1 May 2016 and were filed on his behalf by a legal practitioner. In this statutory declaration, the Applicant described his fears on return for which reasons he sought protection in Australia, including that raised in these proceedings where he said:

   28. I also believe I face serious harm by authorities because I left Sri Lanka illegally to claim asylum in Australia and will be identified as a failed asylum seeker. They may indefinitely jail me, or give me a fine. I would not be able to pay the fine. My wife pawned her jewellery to pay for my passage to Australia. She doesn’t have any money to pay for my fine.

6. On 30 June 2016, some further information was provided to the delegate by Refugee Legal on behalf of the Applicant. The cover email stated (among other things):

   We have provided [the Applicant] with one-off assistance in preparing a response to the matters raised in your letter; attached is a letter from [the Applicant] in response to those matters.

   Please note that we do not act on behalf of [the Applicant] in relation to this application and so all correspondence about this application must continue to be with [the Applicant].

7. On 20 October 2016, the Applicant attended an interview with a representative of the Department of Immigration and Border Protection (as it then was). It is not contentious that the Applicant was not represented on that occasion.

8. On 22 June 2017, a delegate of the First Respondent decided to refuse the visa application.

9. On 27 June 2017, the delegate’s decision was referred to the Authority for review.

10. On 8 July 2017, a representative of Sonia Baba Legal on behalf of the Applicant provided submissions to the Authority along with an authorised representative form which confirmed the appointment of that firm to act as the Applicant’s representative.

11. On 28 November 2017, the Authority affirmed the delegate’s refusal of his visa application and provided a statement of reasons for that decision (Reasons).

    The Authority’s decision

12. At [3]-[10] of its Reasons, the Authority commenced by outlining the information to which it had regard and provided reasons for accepting and not accepting additional information that was not before the delegate.

13. Relevant to this review application, in rejecting new claims made by the Applicant’s representative in submission to the Authority (that had not been before the delegate), the Authority considered at [8]:

    (a)These claims had not been put by the Applicant during the arrival interview, in both of his statutory declarations and during the SHE Visa interview;

    (b)No explanation had been provided in the submissions as to why these claims were only being made now;

    (c)The Applicant had not satisfied the decision-maker that the information could not have been provided before the delegate’s decision, or that it was credible personal information of the Applicant that if known may have affected consideration of the Applicant’s claim,

    and, accordingly, was not satisfied that there were exceptional circumstances to justify consideration of the new claims pursuant to s.473DD(b).

14. And, at [9]-[10], the Authority noted that it was not able to identify the articles referenced in the submissions of the Applicant because specific details were not provided and that there were other, credible recent reports that were considered by the delegate and broadly related to the issues raised in the Applicant’s submissions. The Authority was also not satisfied that “exceptional circumstances” existed as to justify receipt of additional country information pursuant to s.473DD(b).

15. At [11], the Authority summarised the Applicant’s claims. Relevant to the single ground of review, the summary included the Applicant’s claims that:

    •He will be persecuted if he returns to Sri Lanka because of his Tamil race, his support for the United National Party (UNP), and because he left Sri Lanka illegally by boat and came to Australia to seek asylum.

    […]

    •He will face serious harm from the Sri Lankan authorities because he left Sri Lanka illegally and will be identified as a failed asylum seeker.

16. At [12]-[45], the Authority conducted its refugee assessment for the purposes of s.36(2)(a) of the Act. Commencing at [35], under a heading “Illegal departure/Returning asylum seeker”, the Authority:

    (a)Accepted that the Applicant had departed Sri Lanka by boat without the knowledge of the Sri Lanka authorities and on return would be considered a returning asylum seeker who had departed Sri Lanka illegally (at [36]);

    (b)Turned its mind to the Immigrants and Emigrants Act 1949 (I&E Act) which the Authority considered created an offence to depart Sri Lanka other than via an approved port of departure attracting a fine of up to 200,000 Sri Lankan rupees which can be paid by instalments and referenced its source of information as the Department of Foreign Affairs and Trade (DFAT) Country Information Report, Sri Lanka 24 January 2017 (DFAT Report), at 5.17 (at [37]);

    (c)Considered further information from DFAT about the process for involuntary returnees to Sri Lanka including that: according to DFAT all returnees are treated according to standard procedures irrespective of ethnicity, and are not subject to mistreatment during processing at the airport, citing the DFAT Report at 5.19-5.20; and there being relatively few allegations of torture or mistreatment by returnees since 2009 such that DFAT assesses the risk of torture of mistreatment for the majority of returnees is low and continues to reduce, citing the DFAT Report at 4.21-4.22 (at [38]);

    (d)Accepted that the Sri Lankan authorities would infer the Applicant sought asylum in Australia due to the manner of his return, accepted there is a real chance the Applicant will be investigated and detained for a short period, potentially a number of days pending bail, and that it is likely a fine will be imposed on him but found that there was not a real chance the Applicant will be subjected to torture or mistreatment as a Tamil asylum seeker because it had found he did not have links to the LTTE (at [41]);

    (e)Found that, if the Applicant were detained on arrival, it would be for a short period; that the Applicant may incur a fine but did not consider imposition of a fine that can be paid in instalments to amount to serious harm; and whether the brief period of detention and the possible imposition of a fine were considered individually or together did not consider this to amount to serious harm (at [42]);

    (f)Considered, separately, that the country information did not indicate that the processing and penalties the Applicant may face as a result of his return and contravention of the I&E Act was discriminatory in nature or in its application and was not satisfied that it amounted to systematic and discriminatory conduct (at [43]).

17. At [44] and [45], the Authority concluded that it was not satisfied there is a real chance the Applicant will suffer serious harm, now or in the reasonably foreseeable future, as a result of any of the claimed reasons including his illegal departure from Sri Lanka or having claimed asylum in Australia or any combination of the claimed factors. The Authority found that the Applicant did not meet the requirements of the definition of “refugee” in s.5H(1) and did not meet s.36(2)(a) of the Act.

18. From [46], the Authority conducted its complementary protection assessment for the purposes of s.36(2)(aa) of the Act.

19. At [48], the Authority noted that the “real risk” test imposed the same standard as the “real chance” test applicable to the assessment of “well-founded fear” and was also not satisfied there is a “real risk of significant harm”.

20. At [49]-[50], the Authority acknowledged its satisfaction that the Applicant will be identified on arrival in Sri Lanka as having departed illegally and that he will be questioned and may be detained for a short period and that he may be fined. However it was not satisfied that the treatment of the Applicant during airport processing, the imposition of a fine, or the detention and the poor prison conditions to which the Applicant may briefly be subjected would constitute significant harm. Further, the Authority considered that there was no real risk the Applicant would be arbitrarily deprived of life or tortured during this process; the circumstances the Applicant would face would not amount to cruel, inhuman, or degrading treatment or punishment and finally that the evidence did not indicate any intention on the part of the Sri Lankan authorities to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation.

21. At [51], the Authority concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the Applicant will suffer significant harm and the Applicant did not meet s.36(2)(aa) of the Act.

    Procedural history

22. The Applicant commenced the current proceedings for judicial review on 29 November 2017, by lodging an application together with an affidavit exhibiting a copy of the Reasons but adducing no other evidence. The originating materials indicate that the Applicant was not represented by a lawyer or migration agent at the time of filing.

23. On 20 December 2017, the First Respondent filed a response seeking that the application be dismissed with costs.

24. On 7 November 2018, the Applicant filed a notice of address for service which provided that he was represented by Victoria Legal Aid.

25. On 8 August 2020, procedural orders were made for the filing of materials and for a final hearing on a date to be advised.

26. On 22 August 2020, the Respondents filed a court book.

27. On 20 February 2023, consent orders were made to update the First Respondent’s name and list the matter for final hearing on 10 May 2023 before the Court as presently constituted. Those orders included an updated program for filing which required the Applicant to file and serve any further amended application, submissions and any additional evidence by 12 April 2023 and the Respondent to file its materials by 28 February 2023.

28. On 6 April 2023, the Applicant filed an amended application, an outline of submissions and an affidavit deposed by a Ms Tessa Maybery (a solicitor of Victoria Legal Aid) for the Applicant.

29. On 26 April 2023, the First Respondent filed an outline of written submissions and list of authorities.

30. On 5 May 2023, the parties filed a joint bundle of authorities.

31. On 10 May 2023, the matter proceeded to final hearing before the Court as presently constituted. The Applicant and the First Respondent were respectively represented by Counsel.

    THIS APPLICATION FOR JUDICIAL REVIEW

    Statutory framework

32. A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].

33. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163, 175 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].

34. The Applicant filed his application for a protection visa on 4 May 2016, at which time the applicable legislation was the Migration Act 1958 Act (Cth) No. 62 as amended on 24 March 2016). The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

35. An administrative decision-maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.

36. Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.

    APPLICATION BEFORE THIS COURT

37. By the amended application, the Applicant identified a single ground of judicial review in the following terms:

    1.The IAA fell into jurisdictional error by failing to consider a claim or integer of the applicant's claim to face a real chance of serious harm for reason of his illegal departure.

38. The ground of review was particularised as follows:

    Particulars

    a.The applicant claimed to fear harm for reason of his illegal departure from Sri Lanka.

    b.The applicant claimed to fear being jailed or having to pay a fine.

    c.The applicant claimed that if he were fined for illegal departure, he could not pay the fine.

    d.The applicant clearly articulated or a claim clearly emerged that if he did not pay the fine for illegal departure, he could be subject to enforcement action by the authorities, face a term of imprisonment, or be detained.

    e.The IAA failed to consider the applicant's claim he could not pay the fine for illegal departure and what the consequences of that failure may be.

    f.The error was material.

    (strike out added).

39. At the hearing, the Applicant’s Counsel refined his argument. It was put that the claim that the Authority had failed to consider was not clearly articulated in, but had clearly emerged from, the materials before the Authority and therefore it had fallen into jurisdictional error. That clarification, as I understood it, was that the Applicant no longer pressed that part of particular (d) as is reflected in the strike out to the above particulars.

    The respective contentions

40. In summary, the Applicant contended that it was implicit in his 1 May 2016 statement that he feared enforcement consequences by the Sri Lankan authorities if he did not pay a fine imposed under the I&E Act on his return to Sri Lanka or such claim otherwise clearly emerged from the material. The Applicant contended that it followed that the Authority fell into jurisdictional error by its failures to consider: whether he could pay the fine; his economic circumstances on return to Sri Lanka or at all; and the consequences of his failure to pay the fine. He said the error was material because, had the Authority considered it, then the Authority could have found that the Applicant faced a real chance or real risk of a term of imprisonment and harm as a result.

41. The First Respondent argued that no such claim arose from the materials because the relevant claim was put by the Applicant in terms limited to his inability to afford to pay a fine as distinct from a fear that serious harm would flow because of enforcement processes. Further, no evidence was adduced in support and the first time this claim appeared as it is now put was before this Court (and not, as he may have done, in any of the Applicant’s statutory declarations, at the delegate’s interview or in submissions to the Authority).

42. In any event, the First Respondent contended that the Authority engaged with the claim at the necessary level with reference to [42] and [50] of the Reasons. It asked the Court to find that the Authority did not accept the factual claim that the Applicant would be unable to pay a fine imposed because it could be paid in instalments. And any failure to deal with enforcement procedures in explicit terms was not an error because it was not part of the claim or the factual premise of enforcement (non-payment of the fine) was not accepted. In the alternative, any error was immaterial.

    Applicable principles

1. It is not contentious that a failure to consider an applicant’s claims and their component integers may constitute a jurisdictional error, to the extent the claims were squarely raised or clearly emerged from the material: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, see also AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (AYY17).

2. As to whether a claim clearly emerges, in AYY17 at [18], the Full Court usefully outlined principles from the cases which also apply to decisions of the Authority – in summary (additional citations omitted):

   (a)Such finding is not to be made lightly;

   (b)The fact that a claim might be said to arise from the materials is not enough;

   (c)To clearly emerge from the materials, the claim must be based on “established facts”;

   (d)While there is no precise standard to determining whether a claim has been “squarely raised” or “clearly emerged” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”; and

   (e)Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum, rather consideration must be given to the way an applicant’s claims are presented over time.

   Consideration

   Did the claim clearly emerge from the materials?

3. The Authority was only required to consider the Applicant’s claims that were the subject of substantial, clearly articulated argument and which relied upon established facts or clearly emerged from the materials.

4. The Applicant’s claim subject of this review application was particularised at (d) of the amended application. That is: if the Applicant did not pay the fine for illegal departure then he could be subject to enforcement action by the Sri Lankan authorities, face a term of imprisonment or be detained.

5. The only reference in the materials that were before the Authority to the Applicant’s fear of a fine for illegal departure that he could not pay is found in his first statutory declaration filed with the original visa application which said: the Applicant believes that if he returns to the to Sri Lanka, he will be identified as a failed asylum seeker with the potential consequence of either imprisonment or a fine which he would not be able to pay as his wife sold her jewellery. It may be accepted that this was put as one of the reasons why the Applicant sought the protection of Australia.

6. The established facts before the Authority were that the Applicant was an illegal Sri Lankan departee who had sought asylum in Australia and Sri Lankan authorities would likely impose a fine for his illegal departure under the I&E Act. Beyond the original claim, there was simply no established fact or indeed any evidence or submission in the materials before the Authority which addressed the matters of whether the Applicant could afford to pay a fine for illegal departure, whether these fines were enforced or what enforcement would entail.

7. I am empathetic to the Applicant’s argument however consider the better view is that the claim as now put to this Court was latterly contrived. In all of the materials, the Applicant’s claim may properly be construed in the same way that the Authority dealt with it (and, before it, the delegate). That is, the claim was to fear the imposition of a fine which he could not pay not to fear the enforcement of a fine or any specific alleged consequence of such enforcement.

8. A claim of such significance to the Applicant’s case as this required more in order to clearly emerge from the materials in the manner contemplated by the authorities.

9. I have considered that the Applicant engaged a “patchwork” of representation at various stages of presenting his claims and was unrepresented at the delegate’s interview. However this is not a case where the Applicant was unrepresented. To the contrary, excepting only the delegate’s interview he had the assistance of a representative at all stages (including, importantly, in preparation of the originating materials, statutory declaration of 1 May 2016, submissions to the Authority). It is acknowledged that the Authority’s reasoning for why it could not receive new information provided to it by the Applicant’s then legal representative reflected no more than an inconsistency in those later submissions with all of the other materials that the Applicant had by then presented in support of his claims. In my view, on the facts of the present case, the Applicant’s absence of representation at the delegate’s interview and the patchwork of representation throughout the pursuit of his claim to date is a relevant factor for consideration but does not of itself justify a line to be drawn in favour of the Applicant.

10. It is apparent from an inspection of all the materials before the Authority (excepting that new information that the Authority determined it could not receive, which part of the Reasons was not challenged by the Applicant in this review) that the Applicant’s claim did not clearly emerge in a manner contemplated by relevant authorities.

11. It follows that the Authority was not required to consider the Applicant’s claim as it is now put in this review and its failure to explicitly turn its mind to the Applicant’s ability to pay a fine imposed under the I&E Act, his economic circumstances on return to Sri Lanka or at all and the consequences of his failure to pay were not an error of jurisdiction.

12. In light of the above reasons, there is no basis to find jurisdictional error.

    CONCLUSION

13. For the above reasons, the application for review is dismissed with costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.

Associate:

Dated:       16 June 2023